Before the RIAA Can Sue a Student, Mom and Dad Can Call a Lawyer: An Interesting Innovation Affords Some Notice to Students Accused of Illegal Downloading

By ANITA RAMASASTRY


Monday, Oct. 06, 2008

In recent years, college students on campuses through America have found themselves receiving letters or subpoenas from the Recording Industry Association of America (RIAA) accusing them of illegally downloading copyrighted music from the Internet. The RIAA locates these students by first learning the Internet Protocol (IP) addresses for the computers on which someone has downloaded music files from a peer-to-peer (P2P) website, and then connecting the computers with the individual students.

Universities' responses to the RIAA's actions have differed. Some have actively cooperated, while others, like the University of Oregon, have challenged the subpoenas and refused to comply. Most recently, the University of California at Santa Cruz has invoked its obligations to the students and their parents under federal educational privacy laws as grounds for delaying compliance with an RIAA subpoena.

In the case, UMG Recordings v. Doe, a Northern California federal court agreed with UC Santa Cruz in part - stating that the university needed time to notify parents and students of the RIAA probe, before it divulged any names to the recording companies. Now, parents and students will have time to decide whether to retain an attorney, and find one if needed, and parents can assist students regarding the legal proceedings.

In this column, I will examine this recent case and the court's ruling, which I will argue is correct and laudably clear. While the ruling may seem paternalistic if applied to college students who are legally adults, it simply recognizes the reality that parents often will be the ones to pay the RIAA and may also have more experience in dealing with lawsuits or legal actions than their college-age children do.

The Facts and Issues Before the Court in UMG Recordings v Doe

In the UC Santa Cruz case, UMG Recordings and other recording companies (all members of the RIAA) allege that the defendant, identified only as "John Doe," distributed a variety of copyrighted sound recordings over a P2P network. The companies hired a third-party snoop, Media Sentry, to patrol various P2P networks, searching for improper downloading of copyrighted material, and Media Sentry, the companies allege, detected John Doe's alleged illegal distribution of copyrighted musical works. John Doe's IP address, which he received in May of this year, is 169.233.32.109, and further investigation showed that it was linked to UC Santa Cruz.

This past August, the companies sued John Doe for copyright infringement. Now, they have served a subpoena on UC Santa Cruz for "documents that identify John Doe, including the name, current (and permanent) address and telephone number, e-mail address, and Media Access Control addresses."

UC Santa Cruz, however, objected, noting that as a university that receives federal funding, it must comply with the Family Educational Rights and Privacy Act (FERPA), which prohibits the disclosure of "any personally identifiable information in education records other than directory information." to third parties. There is an exception to FERPA for lawfully-issued subpoenas, but only if parents and students are notified of the subpoenas before the university complies.

The court reasoned that UC Santa Cruz will ultimately have to supply the name of the student to the recording companies, but it also enforced FERPA. Specifically, the court mandated that the return date of the companies' subpoena "must be reasonably calculated to permit the University to notify John Doe and John Doe's parents if it chooses prior to responding to the subpoena." The court also made clear that the companies could only use the information regarding the student to protect their copyrights, not for any other purpose.

Why Notice to Parents Will Also Benefit Students Accused of Illegal Downloading

FERPA requires notice to parents, and in this context, that's a very good idea. Prior notice will allow the student and his family to confer, decide whether to retain a lawyer, and - perhaps with a lawyer's help -- decide wither to settle with the RIAA and pay a hefty fine or go to court.

Significantly, these cases are not always open-and-shut. A student's computer may be used not only by the student, but also by a roommate, girlfriend or boyfriend, classmate or fellow fraternity or sorority member. Thus, if illegal downloading occurs, the student is not the only possible culprit.

Other Subpoena Cases Have Raised Similar Issues

Another court also found implied rights of notice and due process in a set of similar copyright infringement cases. The case (which I discussed in an earlier column) was Elektra Entertainment Group et al v. Does 1-6, and it concerned alleged illegal downloading at the University of Pennsylvania. There, a federal court held that before revealing the John Does' information, Penn had to first alert the John Does; explain what had happened; and explain how the John Does might contest the charges against them. The court also provided a model notice, attached to its order, for Penn to use -- which included a resource list of attorneys and organizations assisting individuals whose ISPs have received this kind of subpoena.

Currently, another case involving alleged illegal downloading at the University of Oregon, Arista v. Does 1-17, is ongoing. It was filed in August 2007 and in late September, Judge Michael Hogan quashed the RIAA's subpoena seeking identifying information on 17 University of Oregon students - but allowed the RIAA to resubmit a more narrowly-tailored subpoena.

The University had sought to quash the subpoena as unduly burdensome, saying that the RIAA's request for "information... sufficient to identify the alleged infringers of copyrighted sound recordings" was unreasonable. Oregon claimed it had no way of determining who the 17 Does were. Only one of the students identified by Media Sentry lived in a single-person dormitory. Five students lived in double-occupancy rooms, and nine others were downloading music on the university's wireless network.

Thus, Oregon argued that the RIAA was, in effect, asking the university to become its investigator and enforcer. The judge agreed. Thus, the RIAA must now serve a new subpoena that asks instead for names and contact details of possible infringers; it will be up to the RIAA to try to determine which, if any, of those students were actually using a P2P service to swap copyright infringing music.

Overall, the recent court decisions in this area show that courts are appropriately trying to balance the interests of the RIAA with universities' duties to students and their parents.


Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, computer data security issues, and other legal issues for this site, which contains an archive of her columns.

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